Jury nullification

By Rena McCain

Happy Weedsday, my
friends! It’s been a crazy place to live on this globe lately! There are so
many people that have been and continue to be locked in prisons and jails all
across the country for cannabis-related charges as other parts of the world
have stepped up and legalized it recreationally for their citizens. It seems
hopeless, doesn’t it?

But there is
hope in educating fellow peers though about a simple legal mechanism. It is
called jury nullification!

Jury
nullification is when a jury returns a verdict of “not guilty” even though that
same jury may believe its that the defendant is guilty of the violation
charged. It’s basically down-voting the law in which they were charged with as
no good. So jury, in effect, nullifies a law that it believes is either immoral
or wrongly applied to the defendant whose fate they are charged with deciding.
Pretty cool mechanism, huh?

I read up on
several stories of jury nullification and so far it seems the most famous
nullification case is the 1735 trial of John Peter Zenger, who was charged with
printing seditious libels of the governor of the Colony of New York, William
Cosby. Even though Zenger undoubtedly printed the alleged libels, the jury
returned a verdict of “not guilty.”

Do juries
have the right to nullify? Juries clearly have the power to nullify; whether
they also have the right to nullify is another question. In support of our right
to nullify, early in our country’s history, judges often informed jurors of
their nullification right. For example, our first Chief Justice, John Jay, told
jurors: “You have a right to take upon yourselves to judge [both the facts and
law].” In 1805, one of the charges against Justice Samuel Chase in his
impeachment trial was that he wrongly prevented an attorney from arguing to a
jury that the law should not be followed.

Judicial
acceptance of nullification began to wane, however, in the late 1800s. In 1895,
in United States v Sparf, the U. S.
Supreme Court voted seven to two to uphold the conviction in a case in which
the trial judge refused the defense attorney’s request to let the jury know of
their nullification power.

Courts currently are reluctant to encourage jury nullification, and have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently,
several courts have indicated that judges also have the right, when it is
brought to their attention by other jurors, to remove (prior to a verdict, of
course) from juries any juror who makes clear his or her intention to vote to
nullify the law.

So, if jurors
have the power to nullify, shouldn’t they be told so?

That’s a good
question. Most people have no idea what jury nullification is or what it’s even
used for. So, as it stands now, citizens and potential jurors must learn of
their power to nullify from sources like televised legal dramas, novels, or
articles like this one to educate them about this power. Some juries will
understand that they do have the power to nullify, while other juries may be
misled by judges into thinking that they must apply the law exactly as it is
given. Many commentators regarding this issue have suggested that it is unfair
to have a defendant’s fate depend upon whether he is lucky enough to have a
jury that knows it has the power to nullify.

Judges have
worried that informing jurors of their power to nullify will lead to jury
anarchy, with jurors following their own sympathies. They suggest that
informing of the power to nullify will increase the number of hung juries.

Some judges
also have pointed out that jury nullification has had both positive and
negative applications — the negative applications including some notorious
cases in which all-white southern juries in the 1950s and 1960s refused to
convict white supremacists for killing blacks or civil rights workers despite
overwhelming evidence of their guilt.

Finally, some
judges have argued that informing jurors of their power to nullify puts too
much weight and responsibility on their shoulders and that is easier on jurors
to simply decide facts, not the complex issues that may be presented in
decisions about the morality or appropriateness of laws. I feel in this
argument, how is the judge to know? He or she doesn’t know me or my
comprehension. In my opinion, I believe that they think a person who is
educated about and intends to exercise their power of jury nullification is a
threat to them and their antiquated laws that need to be changed.

Jury
nullification provides an important mechanism for feedback. Jurors can use this
nullification to send messages to prosecutors about misplaced enforcement
priorities or what they see as harassing or abusive prosecutions. In my opinion,
it isn’t used often enough and could prevent many people for being jailed that
should’t be, if only the general public was aware of this tool in our toolbox.

Disclaimer: The views and opinions expressed
in this article are those of the author and do not necessarily reflect the
position of the MONTROSE STAR.

Rena McCain is a co-founder of the Cannabis
Open Carry Walks. Find her on Facebook at GanjaGrrl420, or via Twitter
@sassikatt24 and Instagram at ganja_grrl420. Listen to Conversations with Ganja
Grrl & 420 News HQ, McCain’s broadcast on MixLR.com every Sunday morning,
11 a.m. ’til 2 p.m. CST on the MountainHighX station. To listen, download the
MIXLR APP for Android or Apple. Make an account. Search for and follow
MountainHigh10.